a) The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.

The second sentence recognises that Saudi Arabia would have every right under the UN Charter to defend it against armed attack — if, for example, the Qatar military decided to use a Qatar Airways plane for offensive military purposes. But although a civilian Qatar Airways plane would no doubt violate the principle of non-intervention if it intentionally entered Saudi airspace, thus giving rise to Qatari state responsibility (because Qatar owns Qatar airways), the mere fact of intentional entry would not remotely qualify as an armed attack — much less one that would justify the use of lethal force in self-defense.

The conclusion is no different under the jus in bello. A Qatar Airways plane would not become a legitimate target by flying over a Saudi “military area” — much less simply by entering Saudi airspace. Indeed, neither act would even be a use of force sufficient to create an international armed conflict between Qatar and Saudi Arabia. So IHL would not even apply.

We need to be clear about what the video represents. Quite simply, Saudi Arabia is threatening to engage in state terrorism — the use of violence to spread panic among Qatari civilians in order to persuade the Qatari government to supposedly stop supporting terrorist groups. (Something the Saudis know more than a little about.)

Saudi Arabia is a fundamentally lawless state. I’d like to think this horrific video could prove to be its Charlottesville moment, finally convincing the US and the UK that the Saudi government has no intention of complying with international law. But I’m not going to hold my breath. If routinely massacring civilians in Yemen isn’t enough, what’s casually threatening to blow up a civilian Qatari plane?

3 Responses

I believe your assessment is not entirely accurate for one reason.

The video in question clearly shows two scenarios. The first one is a plane, clearly marked as Qatar airways and described as civilian by the narrator, whereby it is forced to land. The second scenario to which you refer (of the plane being shot down), is clearly unmarked and described as a military target by the narrator.

A more accurate translation of what the narrator said referring both scenarios is:

“[…] International law permits, that a state may interact/interfere with any aircraft that enters its airspace (without permission). The options in these situations are usually to send military planes that will force said aircraft to land. Whereby persons involved in the flight of the aircraft can be prosecuted for various crimes related to state security and placing civilian lives in danger.

“International law also allows the state to destroy any aircraft that enters its airspace and which is identified as a hostile/military target. Especially in military zones, where air defence is not restrained.”

If a Qatari military plane does approach Saudi airspace then the Chicago Convention on International Civil Aviation does not apply, as article 3 clearly explains – it only applies to civil aircraft and not state aircraft. And this is defined in terms of function, not ownership; whereby state aircraft is any aircraft used for military, customs or policing purposes.

Of course it is threatening in imagery to use an unmarked plane that clearly looks like a civilian airliner, even if it is described as a hostile/military target. And your argument on the excessive use of force, article 51 of the UN Charter and what constitutes an armed attack still stands.

Thanks for the translation, Ziyad. I probably should have noted that the target of the Saudi attack did not have Qatari Airways marking, though as you note it’s obviously not a military aircraft — as indicated by the line of passenger windows. And, of course, the “military zones” comment still makes no legal sense!

May 14, 2018ANZAC Day and Post Conflict Reconciliation[Chris Jenks is an associate professor of law and directs the criminal justice clinic at the SMU Dedman School of Law in the US.]
On April 25th, I had the privilege of attending an ANZAC Day dawn service at Kranji War Memorial Cemetery in Singapo...